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Brain Injuries: Is Law Catching Up to the Medicine or Are Lawyers Trying to Push Medicine Too Far?

I fully admit that this post is inspired, at least in part, by the now viral comments of Bob Costas, the well-known sportscaster.  Just recently, he was asked about whether he would let a child play football.  As many of you probably know, he said, absolutely not. This sent the pundits into a whirlwind, of course.   They proceeded to discuss (some with bias, some without) the dangers of football and the brain injuries it can cause.  But, as much as I’d like to discuss football and which state’s college teams are ranked number one and seven in the BCS and are responsible for the last three national championships (ahem), this isn’t a football blog.  It’s a blog about the law, and mostly personaly injury law.

Brain injuries, it seems, are on the rise.  (Whether there are, in fact, more brain injuries, or just more awareness of them that is causes it to seem as though they are on the rise, I do not know.)  We hear about the many, many brain injuries which our soldiers serving us overseas suffer.  We hear about brain injuries in football, as discussed above, and recently, I even watched a special news story on brain injuries in soccer – girls’ soccer of all things – which I watched with special interest because I have two teenager girls who play soccer.

We have also heard more about lawsuits regarding brain injuries – most notably the NFL class action lawsuit regarding concussions, which was recently settled.   The skeptic would say that that’s just a bunch of lawyers trying to get rich.  Even though I am a lawyer, I, too, wondered about the merits of the claim.  I thought: was this a bunch of lawyers pushing the envelope, or was it actually about the field of science/medicine and what it had established as the cause of injuries in football?

As it turns out, it looks like scientists, doctors, etc. were way ahead of the lawyers.  PBS has an interesting report about the timeline of what the NFL knew and when it knew it.  If true, it is an horrible indictment of the NFL.  According to the report, the NFL leaders were publicly stating that no data existed linking football injuries to long-term effects on the brain, but privately receiving actual science to the contrary.  Even the Fox network has jumped on board, running a similar report on whether the NCAA ignored similar science in college football.

Ignoring science and medicine is not limited to sports.  Scientific reports of the harmful effects of prescription drugs are sometimes ignored by pharmaceutical companies.  Why?  Well, you decide.

My point is that most of us think that lawsuits drive science and medicine.  That may be true in some instances.  But in most cases, scientific or medical facts drive legal claims.  When someone or some entity knows about documented scientific or medical facts about the harm their conduct has, and ignores it, people get hurt.  When people are unnecessarily hurt, the right thing to do is compensate them.  When the right thing is not done, that’s where trial lawyers get involved.

The law has a rule of evidence which in federal court is called the Daubert standard, named for the legal case that set the rule.  It says, in part, that only generally-accepted science is allowed to prove a claim.   Thus, before a lawsuit is filed, the scientific community has usually recognized the cause of the plaintiff’s harm.

In essence, the law, for the most part, does not push the medical envelope.  It reflects what is known, and often ignored, in the medical/scientific community.  My only hope, as I have said before, it that we get to the point where we do not ignore medical and scientific evidence and that we stop harm so that a lawsuit is not necessary.

Edwin Lamberth

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